ACSBlog: The Blog of the American Constitution Society

Samuel Bagenstos, Professor of Law, Washington University Law School

At the end of his opinion in the school integration cases today, speaking for himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts reduces the matter to a simple point: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Here, he echoes Professor William Van Alstyne’s retort to Justice Blackmun’s famous statement in Bakke that “[t]o get beyond racism, we must first take account of race.” In response to that statement, Professor Van Alstyne wrote that “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one’s own life—or in the life or practices of one's government—the differential treatment of other human beings by race.”

But there is a disconnect here. The Louisville and Seattle school districts did not claim that they needed to engage in race-conscious student assignment to keep themselves from discriminating on the basis of race. As Chief Justice Roberts explained, the Louisville school district had already been declared unitary by a federal court, and there had never been any finding or admission of discrimination by the Seattle school district. The school districts contended instead that (among other things) racially identifiable housing patterns—themselves significantly the result of private discrimination—led to racially identifiable schools. Does a school system help us get beyond racism if it is forced to rely on and entrench the results of private housing segregation in school assignments? Do schools that are de facto segregated, as a result of these patterns, help us “stop discrimination on the basis of race”?

Chief Justice Roberts gives us no reason to believe that a rule of formal governmental race-blindness, that entrenches and enforces the results of private racial discrimination, will “stop discrimination on the basis of race.” He gives us nothing more than the platitude that when the government takes race into account it “reinforce[s] the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin.” (Here he quotes from a 1993 opinion involving racial gerrymandering in redistricting.) Chief Justice Roberts is making an awfully doubtful empirical assertion here, without providing any empirical evidence. And the normative premise that school districts must take private discrimination as they find it, with their hands tied from responding to it, seems to me totally unjustifiable. Remember that here we are dealing with school districts that voluntarily chose to adopt integration plans—this isn’t a case involving court-ordered integration.

Justice Kennedy, by contrast, gets this key point: “To the extent that the plurality opinion suggests that the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.” Justice Kennedy’s concurrence in the judgment is far from perfect, but it is the first time that he has made clear in an opinion his understanding of the problem of private discrimination.

Chief Justice Roberts’s opinion will draw a lot of attention and criticism today—as well it should. The idea that school integration is at all the same as dividing students into different schools on the basis of race is offensive and blinkered. But Justice Kennedy’s opinion will be more important at the end of the day: It recognizes that school districts have a constitutionally permissible role in alleviating the effects of private discrimination—and that they may take account of race in doing so, so long as racial classifications of individual students are used only as a last resort. Given what might have happened in this case—and what Chief Justice Roberts wanted to have happen in this case—Justice Kennedy’s separate opinion leaves school districts a lot of space to do the right thing,

(Crossposted at Supreme Court—School Integration)